Chan v Maher Elias and Associates
[1994] IRCA 122
•1 Dec 1994
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 1224 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
TONY PING H. CHAN
Applicant
A N D
MAHER ELIAS & ASSOCIATES
Respondent
Reasons for Judgment
1 December 1994 PARKINSON JR
In this matter the applicant alleges that his employment was terminated in contravention of S170DF(1)(e), S170DE and S170DC of the IndustrialRelations Act 1988 (“the Act”). The applicant seeks the following orders:
an order declaring the termination of the employer’s employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988;
an order requiring the respondent to reinstate the employee in employment;
an order that the respondent pay compensation to the employee.
Background and summary of findings on the evidence.
The applicant was employed by the respondent on 6th June, 1994 after he responded to an advertisement for a part-time position as a bookkeeper. His employment with the respondent was terminated on 22nd July, 1994.
The employer was eligible, in respect of the applicant’s employment, for a training subsidy provided by the Commonwealth government under the JobStart scheme (Exhibit S3). This subsidy provided for a significant contribution by the Commonwealth to the wages payable by the respondent to the applicant.
The JobStart agreement was signed by both the applicant and the respondent on 8th June, 1994. As a result of entering the agreement, the employer agreed to employ and, subject to the usual entitlements at law, to continue to employ the employee for at least a period of three months after the cessation of the wage subsidy. That agreement also contained terms providing for supervision and training of the employee.
The applicant’s evidence was that there was dispute between himself and the principal of the respondent, Mr. Elias, as to his hourly rate of pay.
His evidence was that there was never any difficulty raised with his work performance and that, to the contrary, the respondent increased his number of hours of work from part-time to full-time after his first day of work. The applicant’s evidence was that it was only after he disputed his hourly rate of pay, both with the respondent and with various authorities, that the respondent decided to terminate his employment.
That there were discrepancies in the amount of wages paid to the applicant by the respondent is not an issue in dispute in these proceedings. The evidence is that payment was subsequently made by the respondent to the applicant in respect of amounts owing by way of underpayment. The respondent’s evidence was that the underpayments resulted from a mistake on his part as to his obligations.
The respondent’s evidence was that the applicant’s work performance was not at an acceptable level, and that this was apparent from very early in the employment. It was the evidence of Mr. Elias of the respondent that the applicant was unable to perform basic but fundamental tasks in relation to his bookkeeping function, and that he failed to follow instructions given.
A number of examples were given of instances where the applicant had failed to meet the performance expectations of the respondent. These included examples that calculations were incorrect, and also examples of various tasks being completed, in the respondent’s opinion, in an excessive time frame. Examples were also given of a failure on the applicant’s part to follow instructions as to the methods to be adopted in performing various tasks. It was also Mr. Elias’ evidence that he began to leave written instructions on files for the applicant to ensure that his instructions were adhered to. Mr. Elias gave evidence that he had, during the course of the employment, raised with the applicant his concerns as to his work performance, and in particular the length of time tasks were taking. Both Mr. Elias and Mrs. O’Connor, who is employed by the respondent in an administrative capacity, gave evidence that the applicant took longer than was reasonable to complete tasks such as lodging documents with various authorities, and that he was on occasions late in commencing work. It was Mrs. O’Connor’s evidence that the applicant apparently had difficulty completing set tasks. The applicant denied having such difficulty.
Mr. Elias gave evidence that he increased the applicant’s hours to full-time within days of his commencement, and that this was done because it was apparent that the applicant took a greater amount of time to complete tasks that had been completed within the part-time hours by the bookkeeper previously employed by the respondent. It was also Mr. Elias’ evidence that he informed the CES of the consequential alterations to the hours of work and rate of pay in the JobStart agreement. I am satisfied that this was so, and that the applicant agreed to these changes on the terms evidenced by the respondent.
Whilst the applicant’s evidence was that his hours were altered to full-time after the first day of his attendance due to satisfaction with his work performance, I am satisfied with the respondent’s explanation of his conduct. I am of the view that the respondent did attempt to accord the applicant an opportunity to perform the work required of him. In determining this, I have had reference to the fact that the wages subsidy was operating at this time, and I am of the view that this factor was an important consideration in the extension of the hours from part-time to full-time. I am satisfied on balance that there were difficulties with the work performance of the applicant as evidenced by the respondent.
S170DF (1)(e) - Employer not to terminate on certain grounds.
The applicant alleged that the reason for the termination of his employment was his complaint about the rate at which he was being paid by the respondent, and that this reason was a reason prohibited by S170DF(1)(e) of the Act.
S170DF (1) relevantly provides:
“An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
...
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities”.
As earlier stated, there was evidence given as to various underpayments in wages which were rectified subsequent to the termination. There was also evidence that the applicant believed he had agreed to an amount of $11.50 per hour upon commencement, that this amount was not applied to the full time employment by the respondent, and that this was the subject of a complaint by the applicant to the respondent. The termination of the applicant’s employment took place some seven weeks after he initially raised the issue of his hourly rate with Mr. Elias.
Mr. Elias gave evidence that his reason for the termination of the employment was because of the work performance of the applicant, and that the issue of the complaint in relation to wage rates had no part in his decision to dismiss. The evidence was that whilst the respondent was aware of the applicant’s concern regarding the amount of his hourly rate of pay because he had spoken directly to Mr. Elias regarding that matter, the applicant had not raised with the respondent any complaint as to a failure to pay appropriate award rates of pay, and the applicant’s filing of a complaint to the various wage authorities had not been brought to the attention of the respondent by any person, including the applicant, prior to the termination of the employment.
Having regard to these matters, I am satisfied that the respondent has shown on balance of probability that neither the issue of the applicant’s wage rate entitlements nor his filing of a complaint in relation to underpayment of wages, was the reason for or formed any part of reason of the respondent for the termination of the applicant’s employment.
I note, however, that I am not certain that the complaint by the applicant to Mr. Elias as to his hourly rate of payment falls within the meaning of the term “the filing of a complaint” as contained in S170DF(1)(e) of the Act.
No argument was put by the parties in relation to the meaning of this phrase, however it is unnecessary for me to address this question in this decision in view of my findings on the evidence in this regard.
S170DE(1) - Valid Reason.
I refer to my earlier findings of fact in relation to the evidence as to the work performance of the applicant. Having regard to these matters, I am satisfied that the respondent did have a valid reason for the termination of the applicant’s employment related to the work performance and conduct of the applicant. In so far as the issue of the JobStart agreement is relevant to this finding, I deal with that matter in considering whether the termination was harsh, unjust or unreasonable.
S170DE(2) - Harsh, unjust or unreasonable.
The circumstances of this application raises the question of the relationship between the JobStart agreement, and in particular its terms as to training and supervision, and the expectations of the employer as to level of work performance of the applicant. As earlier discussed, the JobStart agreement anticipates that, in exchange for a wages subsidy, the respondent would train and supervise the applicant in the performance of his duties. At the same time it does however reserve all statutory rights and duties to the parties.
The evidence in this case was that the applicant was an experienced bookkeeper, with experience in all of the technical aspects of the work required of him by the respondent, albeit with no familiarity with the particular software package utilised. The applicant’s resume, which was relied upon by the respondent, evidenced this experience (Exhibit K1). The job advertisement to which the applicant responded specified that the respondent required an experienced person (Exhibit S1). Whilst the JobStart agreement does impose an obligation on the employer to provide training and supervision, in my view that obligation does not preclude a reasonable expectation of performance of the duties for which the employee is employed. In so far as that work performance expectation is reasonable, and the supervision of the employee is appropriate to the level of the employee’s skills and experience, the existence of an employment subsidy cannot be relied upon to establish prima facie that any termination of employment within the subsidy period was harsh, unjust or unreasonable.
In the present case, I am satisfied that the expectations of the respondent in relation to the applicant’s performance were reasonable. I am also satisfied that there was an adequate level of supervision, and that there was assistance available to the applicant if required.
S170DC - Employee to have opportunity to respond to allegations.
S170DC provides:
“An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b) the employer could not reasonably be expected to give the employee that opportunity.”
In this matter the evidence is that the respondent called the applicant into his office to inform him that his employment was to be terminated. He gave the applicant one week’s notice of the termination of the employment. The applicant was required to work during the period of notice. The applicant’s evidence was that the only reason the respondent gave was that he could not continue to employ him and meet his budget. The respondent says that he informed the applicant that he was not performing. The respondent says that the applicant had an opportunity to address the allegations in relation to his performance, and did not. The respondent further relies upon the period of notice as evidencing a continuing opportunity in this regard.
I do not accept that the allegations directed to the applicant’s performance or conduct were put to the applicant in such a way as to enable him an adequate opportunity to respond. Nor do I accept that the fact that he remained at work during the notice period, but after the decision to terminate had been made, constituted a continuing opportunity to respond. The obligation arising from S170DC requires that the employer accord an opportunity, and to truly do this the employer must take steps to ensure that the employee is aware that prior to the termination of the employment he or she will be heard in their own defence. In this regard I refer to the decision of Wilcox CJ in Nicolson v Heaven & Earth Gallery Pty. Ltd., unreported, 20 September 1994, wherein the Chief Justice said, at p.23-24:
The paragraph does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as “natural justice” or, more recently, “procedural fairness”. The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well-established in public administrative law. It was accepted into international labour law when Article 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Article 7. the principle is, I believe, well understood in the community. It represents part of what Australians call “a fair go”. In the context of s. 170DC, it is not to be treated lightly. The employee is to be given an opportunity to defend himself or herself “against allegations made”; that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk. Section 170DC(a) is not satisfied by a mere exhortation to improve.
It is my finding that the respondent did not accord the applicant such an opportunity in this case, and I do not consider that there was any reason why the according of such an opportunity ought not reasonably have been expected. I find, therefore, that in terminating the employment of the applicant the respondent failed to comply with S170DC of the Act.
Consequently, I find that the termination of the applicant’s employment contravened Part VIA of Division 3 of the Act.
Remedy- S170EE
Having regard to my finding in relation to S170DC, I turn now to consider the question of remedy in this matter. In determining the question of the appropriate remedy, I have had regard to the fact that I have found that a valid reason existed, and that the termination was in all other respects not harsh, unjust or unreasonable. Having regard to the matters which I have found resulted in there being a valid reason for the termination, I am of the view that reinstatement would be impracticable.
In determining whether compensation ought be awarded to the applicant, I have had regard to the length of his employment and what period, if any, it was possible that the employment would have been extended had S170DC been complied with. Having regard to the reasons for the termination of the applicant’s employment, those being fundamental concerns about the applicant’s performance of his duties, I am not convinced that the period of employment would have extended significantly beyond the notice period. However, I am of the view that some compensation is warranted in view of the failure to give to the applicant an opportunity to raise any matters which might have mitigated or delayed the termination. I have decided to award the applicant compensation in the sum of $ 826.00, being a gross amount. This amount represents an amount equivalent to a further two weeks remuneration which the applicant would have been entitled to receive had he remained in the employment of the respondent.
The orders of the court will be:
That in terminating the employment of the applicant, the respondent contravened S170DC of the Act.
That the respondent pay to the applicant compensation in the sum of
$826.00.That the time for payment is twenty-one days from the date of this order.
I certify that this and the preceding eleven (11) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.
Associate:
Dated: 1 December 1994
Representatives for the applicant: Australian Services Union
Representative appearing for the applicant: Mr. K. Schuller
Solicitors for the respondent: Les Tarczon
Solicitor appearing for the respondent: Mr. C. Knott
Date of hearing: 25 November 1994
Date of judgment: 1 December 1994
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